The Family and Medical Leave Act (FMLA) became the law in 1993. That’s more than 30 years ago. You’d think all questions about it would have been answered years ago by all federal appeals courts. But trust me, that’s not how the law works! A 2024 case from one of the largest appeals courts in the country just nailed down the answer to an FMLA mystery for the states within its jurisdiction.
Something Amiss?
Truck driver Tomas Perez claimed he got into a collision at work between his truck and a wall. While required by company policy to report the injury immediately, he waited until the end of the business day to do so. Despite there being no objective signs of an injury, a doctor told him not to work for the next five days, which the doctor extended for another 18 days beyond that.
The plot thickened when the company investigators saw no physical evidence of a collision. Then an anonymous employee sent an email to company management saying that Perez was “faking a work-related injury in order to take time off to work on personal business [fixing rental properties].”
What’s a Company to Do?
The employer hired a private investigator to see if it could get the goods on Perez. According to the appeals court’s decision, it did:
Over the course of three days, the investigator captured video evidence of Perez engaging in various activities without visible signs of difficulty or discomfort, including driving through town, gambling at a casino, performing repair work at his rental property, repeatedly lifting and holding both his arms over his head, and carrying and using a power drill and other tools and equipment.
[Author’s note: Wears me out just typing this list.]
The company confronted Perez with its evidence upon his return from leave, to which he essentially took the Fifth, saying he had “nothing to say.” He was fired, and in turn, he fired off an FMLA violation lawsuit.
FMLA Violation?
Perez took FMLA leave for the absences. He argued the company violated the FMLA because, when an employer doubts the validity of an FMLA certification, it must always first seek the opinion of a second or third healthcare provider or seek recertification on a reasonable basis. Because the company did neither, it violated the FMLA when it unilaterally hauled off and fired him.
But one problem was the small, three-letter word “may.” The FMLA regulations provide that an employer “may” require those actions when it doubts the original or continuing validity of the original certification. So, the employer was well within its rights to hire a P.I. and act upon the information provided. Lawsuit dismissed. Perez v. Barrick Goldstrike Mines, Inc., 105 F. 4th 1222 (9th Cir., 2024).
Bottom Line
A few thoughts:
First, this case was decided by the U.S. 9th Circuit Court of Appeals, a very pro-employee federal appeals court on the west coast. The 5th Circuit, whose decisions apply to Texas employers, hasn’t yet weighed in on this issue. But if the 9th Circuit made this ruling, I have no doubt the 5th Circuit would do likewise.
Second, note that the employer here asked for the employee’s version of events. Smart move. Maybe there was an explanation. You never know. I once represented a company that was sued when it fired an employee with a back injury. It, too, hired a P.I. who returned with video of the employee playing a vigorous game of basketball while on leave. Believing it had “slam-dunk” evidence of leave abuse, it fired him without asking him for an explanation. Oops! Turned out his doctor told him losing weight would help his back and suggested basketball. The video only showed that he could not, for the life of him, hit a three-point shot.
Third, keep a copy of the FMLA regs handy. The regs interpret the language of the statute. And don’t shy away from calling your employment lawyer. The FMLA still contains lots of unsolved mysteries.
Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at michael.maslanka@untdallas.edu.